Kellhoffer v. Columbus Southern Power Co. , 192 F. App'x 383 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0548n.06
Filed: August 2, 2006
No. 05-3252
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LEE KELLHOFFER, )
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE
) SOUTHERN DISTRICT OF
COLUMBUS SOUTHERN POWER ) OHIO AT COLUMBUS
COMPANY; )
INTERNATIONAL BROTHERHOOD OF )
ELECTRICAL WORKERS, ) OPINION
Defendants-Appellees. )
)
)
BEFORE: COLE, GILMAN, and FRIEDMAN,* Circuit Judges.
Friedman, Circuit Judge. The district court dismissed, for lack of jurisdiction, a suit under
§ 301 of the Labor Management Relations Act, 1947 (“Section 301”), 29 U.S.C. § 185, in which a
discharged employee challenged his former employer’s refusal to participate in the arbitration step
of the grievance procedure under a collective bargaining agreement that had expired. The
correctness of that ruling depends upon whether the employer’s obligation to arbitrate under the
agreement survived the agreement’s expiration. We agree with the district court that the employer’s
duty to arbitrate did not so survive, and therefore we affirm.
I
*
Daniel M. Friedman, Senior Circuit Judge of the Court of Appeals for the Federal
Circuit, sitting by designation.
No. 05-3252
Kellhoffer v. Columbus Southern Power
A. The appellee Columbus Southern Power Company (“Columbus” or “the Company”), for
whom the appellant Lee Kellhoffer worked, had a collective bargaining agreement (“the
Agreement”) with the appellee Local 1466 of the International Brotherhood of Electrical Workers
(“the Union”), of which Kellhoffer was a member. The Agreement had a three-year term, and
continued thereafter “for yearly periods” unless either party notified the other in writing at least 60
days before the Agreement’s termination that it “desire[d] to commence negotiation for a new
contract.” Art. II, § 1.
The Agreement had a grievance procedure, the final step of which was the submission of the
grievance to arbitration. Art. VII, §§ 2-6. The grievance procedure was triggered by the Union
giving the company written notification “of its desire to arbitrate.” Art. VII, § 6(a). Article VII,
Section (g) of the Agreement stated that “[t]he arbitrator shall have no authority to . . . (5) pass upon
any question arising from incidents that occur after this Agreement has expired.”
B. Prior to the expiration of the Agreement on July 14, 2003 (the end of its three year term),
the Union timely had notified the Company that it “desire[d] to commence negotiation for a new
collective bargaining agreement.” Those negotiations began on June 3, 2003, and the parties did not
reach agreement until September 12, 2003.
According to an uncontested affidavit of James Sullivan, the Labor Relations Manager of
Columbus’ parent corporation, who represented Columbus in the negotiations, at a meeting with the
Union on July 18, 3003, after the Company had given the Union “its best and final” offer, Mr.
Sullivan
reminded the Union that there was no labor contract in effect because the 2000-2003
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labor contract had expired at midnight on July 14, 2003. I specifically told the Union
that because no contract was in effect, CSP would not agree to arbitrate any cases
that arose after the contract expiration, including any discipline and discharge
matters.
C. On July 17, 2003, three days after the Agreement expired, Kellhoffer failed a random
drug test. Columbus discharged him, effective September 4, 2003, after he failed a second test.
The Union invoked the contractual grievance procedure to challenge Kellhoffer’s discharge.
After the Company had rejected the grievance in the third step of the procedure, the Union formally
requested the Company to arbitrate the dispute. The Company denied that request. In a letter to the
Union, it stated:
Your request for arbitration is denied as Mr. Kellhofer’s termination occurred after
the expiration of the Memorandum of Agreement; and, Article VII, Section 6(g) of
the expired Agreement clearly states that an arbitrator has no authority to pass upon
any question arising from incidents that occur after the expiration of the Agreement.
Kellhoffer then filed the present Section 301 suit against the Company and the Union in the
United States District Court for the Southern District of Ohio. His complaint alleged that the
Company had violated his rights under the Agreement by discharging him, and that the Union had
violated its duty to him of fair representation in failing to file an action to compel arbitration “and/or
the prosecution of an unfair labor practice to the National Labor Relations Board.” The complaint
sought damages and Kellhoffer’s reinstatement.
In response to Columbus’ motion to dismiss or for summary judgment, the district court
determined to treat the motion as one for summary judgment, and granted it. The court held that it
lacked jurisdiction over Kellhoffer’s claim against Columbus because, under Section 301,
jurisdiction depended upon the existence of a collective bargaining agreement at the time the
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Kellhoffer v. Columbus Southern Power
conduct challenged in the suit took place; that there was no written collective bargaining agreement
when Columbus discharged Kellhoffer; and that “the evidence indicates that [Columbus] was merely
undertaking its duty to bargain in good faith during the period of July 14, 2003 to September 12,
2003 and that an implied contract could not be inferred from this conduct.”
The court on its own motion dismissed the complaint against the Union. “To recover against
either an employer or a union under § 301, a plaintiff must show that the employer breached a
collective bargaining agreement and that the union breached its duty of fair representation. If the
first claim against the employer fails for lack of subject matter jurisdiction, then the breach of duty
of fair representation claim against the union must necessarily fail with it” (citations omitted).
II
Section 301 provides in pertinent part that “[s]uits for violation of contracts between an
employer and a labor organization representing employees in an industry affecting commerce . . .
or between any such labor organizations, may be brought in any district court of the United States
having jurisdiction of the parties.” 29 U.S.C. § 185(a). “Jurisdiction in a § 301 claim is premised
upon the existence of a contract, which an employer subsequently breaches. Section 301 opens the
federal courthouse only to ‘suits for violation of contracts.’ ‘Where there is no contract, the courts
have no jurisdiction.’” Bauer v. RBX Indus., Inc., 368 F.3d 569, 578 (6th Cir. 2004) (citations
omitted); see also Heussner v. Nat’l Gypsum Co., 887 F.2d 672, 676 (6th Cir. 1989) (“[U]nder
Section 301(a), district courts possess subject matter jurisdiction in cases involving an alleged
violation of an existing collective bargaining contract.”); Johnson v. Pullman, Inc., 845 F.2d 911,
914 (11th Cir. 1988) (“A federal court has jurisdiction over a suit for a violation of a collective
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No. 05-3252
Kellhoffer v. Columbus Southern Power
bargaining agreement under [S]ection 301 only while the agreement is in force.”).
As the district court correctly noted, “no signed collective bargaining agreement was in
effect” when Columbus discharged Kellhoffer on September 4, 2003. This was after the old
agreement had expired on July 14, 2003 and before the parties agreed on a new contract on
September 12, 2003.
As this court has recognized, however, “the existence of a labor contract ‘does not depend
on its reduction in writing; it can be shown by conduct manifesting an intention to abide by agreed-
upon terms.’” Int’l Bhd. of Boilermakers, Local 1603 v. Transue & Williams Corp., 879 F.2d 1388,
1392 (6th Cir. 1989) (quoting Bobbie Brooks, Inc. v. International Ladies Garment Workers Union,
855 F.2d 1164, 1168 (6th Cir. 1984) (emphasis original)). Thus, the parties to an expired collective
bargaining agreement by their conduct may show the intent to continue the contract, in whole or in
part, while in negotiations for a new contract. See Luden’s Inc. v. Local Union No. 6 of the Bakery,
Confectionary, & Tobacco Workers Int’l Union, 28 F.3d 347, 354-55 (3d Cir. 1994); Int’l Bhd. of
Boilermakers, 872 F.2d at 1392. Here “the Court must determine whether the parties intended to
arbitrate the dispute, even if it requires the Court to interpret a provision of the expired agreement.”
Int’l Bhd. Of Teamsters, Local Union 1199 v. Pepsi Cola Gen. Bottlers, Inc., 958 F.2d 1331, 1333
(6th Cir. 1992).
Kellhoffer contends that by continuing to follow some of the terms and conditions of the
Agreement after its termination, Columbus manifested its intent to continue the old agreement until
its replacement had been agreed upon. The record shows, however, that the company did not intend
to continue the contractual provisions providing for arbitration of disputes under the grievance
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Kellhoffer v. Columbus Southern Power
procedure after the expiration of the Agreement.
Four days after the Agreement had expired and during the negotiations over a new
agreement, Sullivan, the Company’s chief negotiator, pointed out to the Union that “there was no
labor contract in effect because the 2000-2003 labor contract had expired at midnight on July 14,
2003,” and “specifically told the Union that because no contract was in effect, [Columbus] would
not agree to arbitrate any cases that arose after the contract expiration, including any discipline and
discharge matters.” See Luden’s, 28 F.3d at 355-56 (“[W]hen a contract lapses but the parties to the
contract continue to act as if they are performing under a contract, [old terms] survive intact unless
either one of the parties . . . indicates . . . it no longer wishes to continue to be bound thereby . . .”
Sullivan’s statements were foreshadowed by and implemented the provision in the Agreement
denying the arbitrator under the grievance procedure “authority to . . . pass upon any question arising
from incidents that occur after this Agreement has expired.” Compare Nolde Bros. v. Bakery &
Confectionary Workers Union, 430 U.S. 243, 252-53 (relying on the absence of language in the
agreement “expressly exclud[ing]” disputes that occur “after [the agreement’s] termination” to
require arbitration in another circumstance).
On this record, there was no collective bargaining provision requiring arbitration of
grievances in effect when Kellhoffer failed the two drug tests and when Columbus discharged him.
Indeed, in this case there were no “material facts and circumstances” that “arose prior to the
expiration of the old Agreement.” S. Cent. Power Co. v. Int’l Bhd. of Elec. Workers, 186 F.3d 733,
740 (6th Cir. 1999). The district court therefore correctly dismissed, for lack of jurisdiction, the
portion of Kellhoffer’s complaint that alleged that the Company had violated the Agreement by
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discharging him.
The district court also properly dismissed the portion of the complaint that alleged that the
Union had violated its duty of fair representation by failing to press his complaint further after the
Company had refused to arbitrate the dispute.
Kellhoffer’s claims against both the Company and the Union “are deemed ‘hybrid’ § 301
claims.” Bauer, 368 at 578. “In a hybrid suit under § 301, to recover against either the employer
or the union, a plaintiff must show that the employer breached the collective bargaining agreement
and that the union breached its duty of fair representation. ‘Unless [plaintiff] demonstrates both
violations, he cannot succeed against either party.’” Adcox v. Teledyne Indus., Inc., 21 F.3d 1381,
1386 (6th Cir. 1994) (citations omitted). Since, as we have held, there was no breach of a collective
bargaining agreement here in the Company’s refusal to arbitrate Kellhoffer’s challenge to his
discharge, Kellhoffer’s fair representation claim against the Union also “must fail.” Adcox, 21 F.3d
at 1386.
CONCLUSION
The judgment of the district court dismissing Kellhoffer’s complaint is affirmed.
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